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Written by charlie

Category: Legal

Published: 04 June 2015

Created: 04 June 2015

Last Updated: 04 June 2015

A rule years in the making, the Obama Administration finally unveiled expanded protections for the nations watercourses and wetlands. Due to the negative effects of 3 Supreme court decisions (Bayview Homes, Rapanos and SWANCC) on the federal jurisdiction over waterways and wetlands, a new, finer grained definition of “waters of the United States” will return some sanity back to protect these important natural resources. In many instances, if state level protections are not in place to guard wetlands and watercourses from encroachment by farming or development, the Federal Clean Water act has little jurisdiction. This balanced rule will hopefully make the determination of exactly what waterways are covered an easier task, and finally begin moving towards the the Nation's stated objective of "no net loss" of wetlands, while retaining traditional exemptions for many farming, ranching, and silviculture activities.

Selected quotes from the rule are below, all 297 pages are available here

This final rule does not establish any regulatory requirements. Instead, it is a definitional rule that clarifies the scope of “waters of the United States” consistent with the Clean Water Act (CWA), Supreme Court precedent, and science......

In this final rule, the agencies clarify the scope of “waters of the United States” that are protected under the Clean Water Act (CWA), based upon the text of the statute, Supreme Court decisions, the best available peer-reviewed science, public input, and the agencies’ technical expertise and experience in implementing the statute. This rule makes the process of identifying waters protected under the CWA easier to understand, more predictable, and consistent with the law and peer-reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.

Additional info:

WATER POLICY: In major shift, new rule excludes some wetlands, ponds

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Written by charlie

Category: Legal

Published: 24 March 2015

Created: 24 March 2015

Last Updated: 24 March 2015

Over 13 years ago, a permit to fill 4.8 acres of wetlands and build a small development of 10 homes in Chesapeake, Virginia, about 7 miles from the Northwest River, was filed by Precon Development Corporation, and denied by the Army Corps of Engineers. Precon sued and the case had been in the courts since.

This past Monday, in an unpublished decision, the 4th Appeals Court upheld that the Corps was acting within its regulatory authority when determining that there was a significant nexus between the wetland in question and the Northwest River. The 10 dollar descriptor, "significant nexus" is the result of a 2006 Supreme Court case, Rapanos vs. United States. This places the the burden of proof on the Corps by requiring them to prove the wetland in question is connected to a navigable water, and can significantly affect its integrity.

In this case, the Corps proved there was a hydrological connection between the property and river, primarily by a series of ditches, and the filling or degradation of the wetland would negatively impact the river, already suffering the ill effects of low oxygen levels.

Wetland related cases as they apply under the Clean Water Act have been in and out court since it was passed in 1972, and will continue to do so. At the heart of the argument is an individuals or businesses right to property under the 5th Amendment, which can directly conflict with the larger societal goal of protecting clean water and fragile wetlands.

Further Reading and Sources:
Precon Development Appeal
Fourth Circuit upholds U.S. Army Corps of Engineers' finding of jurisdiction over 4.8 acres of wetlands in Chesapeake, Virginia